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Decision of Note
The U.S. Court of Appeals for the First Circuit decided, in a ruling of first impression, that a federal court has subject-matter jurisdiction over a suit against a foreign defendant under the Lanham Act only if the protested activities have a substantial effect on U.S. commerce. McBee v. Delica Co. Ltd., 04-2733.
U.S. jazz artist Cecil McBee sued a Japanese company that sold a “Cecil McBee” clothing line. The musician had toured Japan several times but never licensed his name for use outside of his musical activities. The defendant's “Cecil McBee” stores, which generated significant sales, were located only in Japan. The district court dismissed the suit.
Affirming on its own reasoning, the appeals court found in part that the Lanham Act couldn't be used to block U.S.-consumer access to the defendant's Web site by noting: “Delica's Web site is written almost entirely in Japanese characters; this makes it very unlikely that any real confusion of American consumers, or diminishing of McBee's reputation, would result from the Web site's existence. … [T]he Internet searches reproduced in the record all turned up both sites about McBee and sites about Delica's clothing line on their first page of results. The two sets of results are easily distinguishable to any consumer.”
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